Terms and Conditions

Terms and Conditions

KloudStage Software License Agreement

NOTE:

PLEASE REVIEW THIS SOFTWARE LICENSE AGREEMENT CAREFULLY  BECAUSE THIS IS A BINDING LEGAL CONTRACT BETWEEN YOU AND KLOUDSTAGE, LLC (“AGREEMENT”). THIS AGREEMENTS GOVERNS YOUR USE OF THE KLOUDSTAGE SOFTWARE (THE “LICENSED SOFTWARE”).  BY USING THE LICENSED SOFTWARE, YOU ACCEPT THE TERMS OF THIS  AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE  AGREEING TO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU ARE  REPRESENTING TO US THAT YOU HAVE READ THE AGREEMENT, YOU HAVE  THE AUTHORITY TO BIND YOUR COMPANY, AND THE TERM “YOU” SHALL  REFER TO YOUR COMPANY. IF YOU DO NOT AGREE TO BE BOUND BY THESE  TERMS THEN YOU MAY NOT USE THE LICENSED SOFTWARE. THESE TERMS  ALSO INCLUDE AND INCORPORATE ANY TERMS OR POLICY POSTED ON  KLOUDSTAGE.COM.

FOR PURPOSES OF THIS AGREEMENT, KLOUDSTAGE IS THE LICENSOR, YOU ARE  THE LICENSEE. THE LICENSOR AND THE LICENSEE MAY BE REFERRED TO  HEREIN, EACH A PARTY OR TOGETHER AS THE PARTIES.

WHEREAS Licensor is the legal and beneficial owner of the Licensed Software and  desires to license the Licensed Software to Licensee; and

WHEREAS Licensee desires to obtain a license to use the Licensed Software subject to  the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set  forth herein, and for other good and valuable consideration, the receipt and sufficiency of  which are hereby acknowledged, the Parties agree as follows: 

1. DEFINITIONS. For purposes of this Agreement, 

a. “Agreement” has the meaning set forth in the preamble. 

b. “Confidential Information” means any non-public information in any form  and however transmitted, whether orally, visually, in writing, or by electronic  communication, that both Parties reasonably and in good faith deem to be  confidential or proprietary. Confidential Information includes, but is not  limited to, technological disclosures, trade secrets, ideas, concepts, know 

how, business operations, plans, strategies, customer information, pricing  information, and any other information that the disclosing Party is  contractually or otherwise bound to keep confidential. Confidential  Information may, but is not obligated to be designated, marked, or otherwise identified as “confidential.” See exclusions in the section titled  “CONFIDENTIALITY” below. 

c. “Documentation” means any and all manuals, instructions, and other end  user materials that Licensor provides to Licensee describing the software’s  functionality, components, technical specifications, capabilities,  requirements, or limitations. Documentation may include, but is not limited  to, aspects of the software that are of practical importance to Licensee, such  as instructions on installation, configuration, integration, operation, use,  support, or maintenance. 

d. “Effective Date” is the start date for this Agreement where all rights and obligations herein become operational and enforceable. 

e. “Intellectual Property Rights” means any and all registered and  unregistered rights to plans, ideas, designs, or other intangible assets. Such  rights are granted, applied for, or otherwise now or hereafter in existence  under or related to any patent, copyright, trademark, trade secret, database  protection, right of publicity, other intellectual property rights laws, and all  similar or equivalent rights or forms of protection, in any part of the world. 

f. “Law” means any statute, code, ordinance, rule, regulation, constitution,  order, treaty, precedent, judgment, or other legal requirements of any  authority of competent jurisdiction, including, but not limited to, federal,  state, local, or foreign governments, political agencies or subdivisions  thereof, or any appropriate courts or tribunals. 

g. “Licensed Software” means software version Rel 2.0 of KloudStage, any  ancillary data files, modules, libraries, tutorials, or demonstration programs,  and any Maintenance Release(s) provided to Licensee according to this  Agreement. 

h. “Licensee” has the meaning set forth in the preamble. 

i. “Licensor” has the meaning set forth in the preamble. 

j. “Maintenance Release” means any update, upgrade, release, or other  adaptation or modification of the Licensed Software or Documentation that  Licensor may optionally and periodically provide to Licensee during the  Term. Such release may include, but is not limited to, error corrections,  enhancements, improvements, or other changes to the Licensed Software’s  functionality, compatibility, capabilities, performance, efficiency, user  interface, or quality. Such release is separate and distinct from any New  Version Licensor may choose to release during the Term.

k. “New Version” means any new variant of the Licensed Software that  Licensor may introduce and market from time to time as a distinct licensed  product. A New Version may be indicated by Licensor’s designation of a  new version or release number. Licensor may make a New Version  available to Licensee at an additional cost under a separate agreement or  by written amendment. 

l. “Parties” mean the Licensor and Licensee, collectively. 

m. “Party” means the Licensor or Licensee, individually. 

n. “Permitted Use” means use of the Licensed Software by an authorized  user for the benefit of Licensee in its ordinary course of internal business  operations. 

o. “Open-Source Components” means any software component that is  subject to an open-source copyright license agreement. Qualifying open source copyright license agreements include, but are not limited to, Apache  License 2.0, BSD 3-Clause “New” or “Revised” license, BSD 20-Clause  “Simplified” or “FreeBSD” license, GNU General Public License, GNU  Library or “Lesser” General Public License, MIT License, Mozilla Public  License 2.0, Common Development and Distribution License, Eclipse  Public License, and any other obligations, restrictions, or license  agreements that substantially conform to the “Open Source Definition” as  prescribed by the Open Source Initiative or otherwise may require third 

party disclosure or licensing if any source code of such software  components is used or compiled. 

p. “Term” has the meaning set forth in the Term section. 

2. LICENSE GRANT. Subject to the terms and conditions of this Agreement and the  Parties’ compliance therewith, Licensor hereby grants to Licensee, solely for  defined Permitted Use, a non-exclusive, non-sublicensable, and non-transferable  license to use the Licensed Software and Documentation during the Agreement  Term. 

a. Scope of Licensed Access and Use. Licensee can install, use, and run  the Licensed Software on computers or electronic devices. For each  authorized user, subscription fees have to be paid on a monthly basis, or  prepaid in advance for the duration of usage. 

b. Additional Copy. Licensee is permitted to duplicate a copy of the Licensed  Software exclusively for testing, disaster recovery, or archival purposes.  Any copy of the Licensed Software made by Licensee, for any authorized  or unauthorized purposes, continues to be Licensor’s exclusive property, is 

subject to the terms and conditions of this Agreement, and must include all  Intellectual Property Rights notices contained in the original Licensed  Software and Documentation. 

c. Open-Source Licenses. Should the Licensed Software include any Open Source Components, Licensee’s use of the Open-Source Components will  be governed by, and subject to, the terms and conditions of the related  open-source and public licenses. Licensor will provide Licensee with the  license name, author information, license source, access information, and  other relevant information for Open-Source Components. To the extent  required by the license that accompanies the Open Source Components,  the terms of such license will apply in lieu of the terms of this Agreement  with respect to such Open Source Components, including, without  limitation, any provisions governing access to source code, modification or  reverse engineering. 

d. Third Party Software. Licensee further acknowledges and agrees that any  third-party software licenses (any database or application such as Microsoft  Office, Oracle, SAP, PeopleSoft Java, Adobe, Salesforce, etc.) that are  required for the operation of the Licensed Software are the obligation of the  Licensee to obtain. 

e. Third-Party Code. The Licensed Software may contain or be provided  with components which are licensed from third parties (“Third Party Code”).  The Licensed Software consumes certain services (Web Services, Extracts,  Integrations, etc.) that may be allowed and available by the source software  (including Open-Source Components) for computing or providing results. In  the event any such services are discontinued by the source application for  any reason, Licensor may provide other alternatives to provide similar  outcomes, but is under no obligation to do so and will not incur any liability  for failing to do so. 

3. LICENSE RESTRICTIONS. Except as expressly permitted in this Agreement, and  subject to the Open-Source Components if applicable, Licensee will not, and will  not permit any third party to, 

a. reproduce any portion of the Licensed Software for any purpose except as  otherwise authorized in this Agreement; 

b. decode, disassemble, reverse engineer, or otherwise attempt to derive or  gain access to any portion the Licensed Software’s source code;

c. adopt, build upon, correct, modify, translate, or otherwise improve or create  derivative works of the Licensed Software; 

d. lend, publish, rent, lease, sell, sublicense, assign, transfer, or otherwise  make available to any third party not authorized within this Agreement the  Licensed Software in any manner, including, but not limited to, access to  the Licensed Software on the internet or any time sharing, service bureau,  software as a service, cloud, or similar technology or service; 

e. breach or circumvent any disclosed or undisclosed security device or  intended protection used for or contained in the Licensed Software or  Documentation; 

f. efface, alter, obscure, translate, combine, or otherwise change any  trademarks, disclaimers, warranties, Documentation terms, Intellectual  Property Rights, proprietary rights, or any symbols, notices, marks, serial  numbers, or identification on or relating to any copy of the Licensed  Software or Documentation; 

g. use the Licensed Software in any manner or for any purpose that infringes,  misappropriates, or otherwise violates any Intellectual Property Rights or  any applicable Law; 

h. use the Licensed Software for the purposes of (i) comparative or  competitive analysis of the Licensed Software; (ii) developing, using, or  providing a competing software product or service; or (iii) any other purpose  that is to Licensor’s detriment or commercial disadvantage; 

i. use the Licensed Software, alone or in part, in connection with any  hazardous environments, systems, or applications; any safety response  systems; any safety-critical applications; or any applications where the  failure of the Licensed Software may reasonably and foreseeably lead to  personal injury, severe physical damage, or severe property damage; or 

j. use the Licensed Software, Documentation, or any Open-Source  Components for any purpose not expressly permitted under Permitted Use  or in any manner not expressly permitted by this Agreement or the  controlling Open-Source License. 

4. TERM. The term of this Agreement commences as of the Effective Date and will  continue in effect for one year and will auto renew for successive annual terms,  unless notice to terminate is given to the Licensor within 60 days of the expiration  of the term. Fees for each successive term will be at Licensor’s then current rates.

5. DELIVERY. Licensor will deliver one copy of the Licensed Software electronically  to the Licensee on receiving quote approval or Purchase order. 

6. FEES AND TAXES. In consideration of the rights granted to Licensee under this  Agreement, Licensee agrees to pay to Licensor in accordance to the payment  terms set forth in this Agreement: 

a. Taxes. All fees are exclusive of taxes, duties, and other similar  assessments. Licensee is responsible for all sales, service, use, exercise,  and all other similar taxes, duties, and charges of any kind imposed by any  governmental, federal, state, local, or regulatory authority on any amounts  payable by Licensee hereunder. Notwithstanding the forgoing, the Licensor  is solely responsible for its own income tax. 

7. PAYMENT 

a. Payment Terms. Licensee will pay all license fees due and owing under  this Agreement on or before 30 days from the invoice date. Licensee will  make all payments in U.S. currency by check to the Notice address, by wire  transfer/ACH to any account as Licensor may specify in writing from time to  time, or via credit card to Licensor at time of order. 

b. Late Payment. If any payment to Licensor is delinquent, then in addition to  all other remedies available to Licensor, 

i. Licensor may charge interest on the past due amount at a rate no  higher than the highest rate permitted under applicable Law; 

ii. Licensee must reimburse Licensor for all reasonable costs incurred  to collect any and all late payment and associated interest amounts,  including, but not limited to, any attorneys’ fee, court costs, and  collection agency fees; and 

iii. if payment delinquency continues for five business days following  written notice or demand for payment, Licensor may exercise any or  all of the following remedies: (1) technologically disable Licensee’s  use of the Licensed Software; (2) withhold, suspend, or revoke this  license grant; and (3) terminate this Agreement pursuant to the  Termination section. 

8. TESTING AND ACCEPTANCE 

a. Acceptance Parameters and Testing. Acceptance testing will be  conducted by Licensor to establish whether the Licensed Software operates  properly and in accordance with Documentation. Licensee will supply to  Licensor suitable test data and the associated results Licensee reasonably expects to be achieved by using the Licensed Software. Licensor will carry  out testing, in the presence of Licensee or its authorized representative,  upon a mutually acceptable date and time after delivery of Licensed  Software. 

b. Testing Failure. If the initial acceptance testing does not yield expected  results, Licensor will, at its own cost, correct the errors and repeat the  acceptance testing again under the same testing conditions as the initial  test in the presence of Licensee or its authorized representatives. If the  subsequent acceptance testing also fails to yield expected results and such  failure is reasonably determined to be caused solely by the Licensed  Software, Licensee may terminate this Agreement upon written notice to the  Licensor. On termination, Licensor will refund any and all license fees  already paid by Licensee to Licensor under this Agreement. This is  Licensee’s sole and exclusive remedy for any unresolved acceptance  testing failures. 

c. Acceptance. Notwithstanding any acceptance testing rights, requirements,  and obligations herein, Licensee is deemed to have accepted the Licensed  Software if 

i. the acceptance testing conducted by Licensor and witnessed by  Licensee or its authorized representative is successful; 

ii. Licensee fails to provide the acceptance test parameters or  voluntarily forgoes the acceptance testing process; or 

iii. Licensee commences intended use of Licensed Software  irrespective of acceptance testing parameters, process, or result. 

9. MAINTENANCE RELEASE. During the Term, Licensor will provide Licensee with  any new Maintenance Releases, Versions, or updated Documentation that are  announced by Licensor so long as Licensee is current with their monthly or annual  subscription fees. All Maintenance Releases are considered part of the Licensed  Software and are subject to all applicable terms and conditions in this Agreement.  Licensee agrees to install all Maintenance Releases as soon as practicable after  receipt.  

10. NEW VERSION. Licensee does not have any right or option to receive any New  Versions of the Licensed Software that Licensor, in its sole discretion, may release  neither during nor after the Term. Licensee may seek to negotiate a new, separate,  or amended license grant for any New Version at Licensor’s then-current price for  the New Version, provided Licensee is in compliance with the terms and conditions  of this Agreement.

11. TITLE, INTELLECTUAL PROPERTY RIGHTS, AND INFRINGEMENT a. Ownership. Licensee acknowledges and agrees that 

i. Licensor is and will remain the sole and exclusive owner of all rights,  title, and interest in and to the Licensed Software, Documentation,  Maintenance Release, New Version, and all Intellectual Property  Rights associated herein, subject only to the rights of any disclosed  third parties, within any Open-Source Components, and the limited  license granted to Licensee under this Agreement; 

ii. the Licensed Software, Documentation, and Intellectual Property  Rights are licensed, not sold, to Licensee. Licensee does not, has  not, and will not acquire any ownership interest in the Licensed  Software, Documentation, or any related Intellectual Property Rights  through this Agreement; 

iii. nothing in this Agreement grants any implied rights to Licensee,  including by implication, waiver, or estoppel, in any Intellectual  Property Rights or other rights, title, or interest in any portion of the  Licensed Software and Documentation. 

b. Licensee Cooperation and Notice of Infringement. Licensee will, during  the Term, 

i. secure and protect the Licensed Software and Documentation from  infringement, misappropriation, misuse, theft, or other unauthorized  access through all commercially reasonable measures and  precautions similar to those Licensee would employ to secure and  protect its own intellectual property; 

ii. take all reasonable steps as Licensor may require and request to  maintain the validity, enforceability, and ownership of all Licensor’s  Intellectual Property Rights herein; 

iii. promptly notify Licensor in writing if Licensee becomes aware of any  actual or suspected infringement, misappropriation, misuse, theft,  unauthorized access, or other violations of Licensor’s Intellectual  Property Rights in or relating to the Licensed Software or  Documentation; 

iv. promptly notify Licensor in writing of any claim that the Licensed  Software or Documentation, in whole or in part, infringes,  misappropriates, or otherwise violates any rights, including  Intellectual Property Rights, of other persons or entities; and

v. fully cooperate with and assist Licensor in all commercially  reasonable ways, including but not limited to providing records,  information, depositions, and testimonies, and at Licensor’s sole  expense, in any claim, suit, action, or proceeding to prosecute or  defend Licensor’s rights in the Licensed Software, Documentation,  and any Intellectual Property Rights herein. 

12. SECURITY MEASURE DISCLOSURE. The Licensed Software may contain  security features that prevent unauthorized or illegal use of the Licensed Software.  Licensee acknowledges and agrees that Licensor may use these features and  other lawful measures to verify Licensee’s compliance and to enforce Licensor’s  rights under this Agreement. Licensee further acknowledges and agrees that  Licensor may, from time to time at Licensor’s sole discretion, gather Licensee’s  technical, usage, and other related information without disruption to Licensee’s use  and for the sole purpose of improving the Licensed Software’s performance,  developing Maintenance Releases, and developing New Versions. 

13. VERIFICATION AND AUDIT 

a. Verification. At Licensor’s written request, Licensee will confirm in writing  the actual scope of Licensee’s access and use of Licensed Software and  list all locations of actual use if applicable. 

b. Audit Procedure. Licensor or its representative may inspect and audit  Licensee’s use of the Licensed Software under this Agreement at any time  during the Term upon reasonable notice and request. All such audits will be  conducted during regular business hours. Licensor will cooperate with  Licensee to ensure such audits do not unreasonably interfere with  Licensee’s business operations. Licensee agrees to make available all  technology, records, equipment, information, and personnel, and to provide  all cooperation and assistance as necessary for the Licensor to reasonably  conduct the audit. Licensor agrees to only examine information directly  related to Licensee’s Licensed Software use. Licensor will keep confidential  any information Licensee deems confidential that may be directly or  incidentally disclosed during such audits. 

c. Excessive Use Result. If the verification or audit determines that  Licensee’s Licensed Software use exceeds the usage or scope permitted  by this Agreement, Licensee agrees to pay Licensor all amounts due for  excessive use of the Licensed Software as negotiated at such time.

14. CONFIDENTIALITY 

a. Confidential Information. In connection with this Agreement, each Party  may disclose or make available to the other Party Confidential Information  which includes, but is not limited to, the Licensed Software, Documentation,  and any terms of this Agreement. 

b. Exclusions and Exceptions. Confidential Information excludes  information that 

i. was rightfully and lawfully known to the recipient without any  restrictions on use or disclosure prior to disclosure by disclosing  Party in connection with this Agreement; 

ii. was or becomes part of the public domain by means other than by  the recipient or any of the recipient’s representatives’ violations of  this Agreement; 

iii. was or is received by the recipient on a non-confidential basis from  a third party that was not, or is not, at the time of such receipt, under  any obligation to maintain its confidentiality; or 

iv. was or is independently developed by the recipient without reference  to or use of any Confidential Information. 

c. Protection of Confidential Information. As a condition of receiving any  Confidential Information, the recipient will, for one year (1 year), 

i. only access or use Confidential Information if absolutely necessary  to exercise the recipient’s rights or perform the recipient’s obligations  under this Agreement; 

ii. except when compelled by Law, not disclose or permit access to  Confidential Information other than to the recipient’s representatives  on a need-to-know basis for the recipient to exercise its rights or  perform its obligations under this Agreement, under strict information  and understanding of the confidential nature of Confidential  Information and the recipient’s obligations to protect Confidential  Information, and with acknowledgment from such representatives  that they too are bound by the confidentiality and restricted use  obligations set forth herein; 

iii. use, at minimum, the same degree of care that recipient uses to  protect its own similarly sensitive information, and no less than a  generally commercially reasonable degree of care, to secure and protect Confidential Information from unauthorized use, access, or  disclosure; 

iv. promptly notify the disclosing Party in writing of any actual or  suspected unauthorized use or disclosure of Confidential Information  and cooperate with disclosing Party by taking all reasonable steps to  prevent further unauthorized use or disclosure; and 

v. ensure recipient’s representatives comply with the terms of this  section and are responsible and liable for their noncompliance, if any. 

 

d. Trade Secrets Confidentiality Duration. Notwithstanding any other  provisions in this Agreement, the recipient is obligated to protect any  Confidential Information that constitutes trade secrets under any applicable  Law until such Confidential Information ceases to qualify for trade secret  protection by operation of Law. 

e. Compelled Disclosure. To the extent permitted by Law, if the recipient or  its representatives are compelled by Law to disclose any Confidential  Information, the recipient must promptly, and prior to such disclosure, notify  the disclosing Party in writing of such requirement to allow the disclosing  Party the opportunity to seek a protective order or other legal remedy. The  recipient must also provide reasonable assistance to the disclosing Party to  oppose such disclosure, to seek a protective order, or to seek other  disclosure limitations or remedies. If disclosure is unavoidable, the recipient  may disclose only such Confidential Information that the recipient is legally  required to disclose. Upon disclosing Party’s request, the recipient must use  commercially reasonable efforts to obtain assurances of confidential  treatment of all compelled Confidential Information from the applicable court  or legal authority. 

15. TERMINATION. This Agreement may be terminated at any time 

a. by Licensor if Licensee fails to make payment where such failures continue  more than five business days after the due date, effective on written notice  of termination to Licensee; 

b. by either Party for the other Party’s material breach of this Agreement that  is incurable or uncured by breaching party for 30 days after being served  with notice of breach and demand for cure, effective on written termination  notice to the breaching Party; 

c. by Licensor, effective immediately irrespective of written notice, if Licensee 

i. is dissolved or liquidated or takes any corporate action for such  purposes; 

ii. becomes insolvent or is generally unable to pay its debts as they  become due; 

iii. becomes the subject of any bankruptcy proceedings, voluntary or  involuntary, under any domestic or foreign bankruptcy or insolvency  Law; 

iv. makes or seeks to make a general assignment for the benefit of its  creditors; or 

v. applies for, or consents to, the appointment of a trustee, receiver, or  custodian for a substantial part of its property. 

16. TERMINATION OR EXPIRATION EFFECTS. Upon early termination or the  natural expiration of this Agreement, 

a. all licenses, rights, and authorizations granted to Licensee herein will  immediately terminate and Licensee will 

i. promptly cease all use of the Licensed Software and Documentation; 

ii. within five business days deliver to Licensor, or at Licensor’s written  request, destroy and permanently erase from all Licensee’s and their  representatives’ devices, equipment, and systems, the Licensed  Software, Documentation, and all Licensor’s Confidential  Information; and 

iii. certify in writing that Licensee, and any of Licensee’s  representatives, has complied with the termination requirements  herein; and 

b. all amounts payable of any kind under this Agreement are immediately due  and payable effective on the expiration date or early termination date. 

17. MUTUAL REPRESENTATIONS AND WARRANTIES. Each Party represents,  warrants, and covenants to the other Party that 

a. it is duly established, validly existing, and in good standing to conduct  business as a sole proprietorship, partnership, company, corporation, trust,  organization, or any other valid entity under the Laws of its jurisdiction; 

b. it has the full right, power, and authority to enter into this Agreement;

c. it is capable of performing its obligations and granting any licenses, rights,  and authorizations specified under this Agreement; 

d. the executing representative for each Party is duly authorized to represent  each Party in this Agreement by all necessary business formalities and  organizational actions; and 

e. this Agreement is legal, valid, binding on, and enforceable against each  Party when fully and mutually executed and delivered. 

18. LIMITED WARRANTY 

a. Warranty. Licensor warrants to Licensee, for 90 calendar days from the  Effective Date or for the Term, whichever is less, that 

i. the Licensed Software substantially conforms in all material respect  to the Documentation specifications when it is installed, operated,  and used as recommended in the Documentation and in accordance  with this Agreement; 

ii. all Maintenance Releases, when correctly and promptly installed in  compliance with the Documentation and this Agreement, will not  materially affect the Licensed Software’s functionality; and 

iii. any storage media on which the Licensed Software may be provided  will be free of substantial defect under normal use. 

b. Conditions. Licensor’s aforementioned limited warranties are valid and  apply only if Licensee complies with the following conditions: 

i. Licensee notifies Licensor in writing of any warranty breach during  the limited warranty period. 

ii. Licensee promptly installs all Maintenance Releases that Licensor  previously made available to Licensee in order of distribution. 

iii. Licensee is in compliance with and current on all terms and  conditions of this Agreement, including the payment terms, as of the  warranty breach notification date. 

c. Exceptions. Notwithstanding any provisions to the contrary, Licensor’s  aforementioned limited warranties are not valid and do not apply to  problems arising out of or relating to 

i. any modification or damage to the Licensed Software or its storage  media caused by the Licensee or its representatives;

ii. any Licensed Software operation or use not expressly specified and  permitted in the Documentation or this Agreement, including  incorporating the Licensed Software in or with any non-Licensor  approved technology or service unless otherwise expressly  permitted by Licensor in writing; 

iii. Licensee’s, its representatives’, or any third party’s negligence,  abuse, misapplication, or misuse of the Licensed Software, including  any use not expressly specified and permitted in the Documentation  or otherwise expressly authorized by Licensor in writing; 

iv. Licensee’s failure to promptly install the Maintenance Releases  previously provided by Licensor in the order it was received; 

v. Licensee’s or a third party’s system or network; 

vi. any Open-Source Components, beta software, incomplete sample,  demonstration or testing software, temporary software modules, or  any software for which Licensor does not receive a license fee; 

vii. Licensee’s breach of any material provision of this Agreement; or 

viii. any other causes or conditions outside the Licensor’s reasonable  control. 

d. Remedy. If Licensor breaches, or is alleged to have breached, any limited  warranties herein, Licensor may, at its sole option and expense, take any  of the following steps to appropriately remedy such breach: 

i. Repair the Licensed Software. 

ii. Amend, supplement, or replace any incomplete or inaccurate  Documentation. 

iii. Replace the Licensed Software or Maintenance Releases with  functionally equivalent software that, upon its replacement,  constitutes the Licensed Software hereunder. 

iv. Replace any defective storage media on which the Licensor provided  the Licensed Software. 

v. Terminate this Agreement and, provided that Licensee fully complies  with its post-termination obligations, promptly prorate and refund  Licensee any prepaid amount by Licensee for any period after the  termination date.

e. Sole Remedy. Should Licensor fail to cure a warranty breach or terminate  this Agreement within a reasonable time period after Licensor’s receipt of  Licensee’s timely written notice of such breach, Licensee can terminate this  Agreement as provided herein. THIS IS LICENSEE’S SOLE REMEDY AND  LICENSOR’S ENTIRE OBLIGATION AND LIABILITY FOR ANY LIMITED  WARRANTY BREACH UNDER THIS AGREEMENT. 

f. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN  THIS AGREEMENT AND FOR THE EXPRESS LIMITED WARRANTIES  HEREIN, ALL LICENSED SOFTWARE, DOCUMENTATION,  MAINTENANCE RELEASE, PRODUCTS, INFORMATION, MATERIAL,  AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS,  WHERE IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY  KIND, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, STATUTORY,  OR ARISING FROM ANY COURSE OF DEALING, USAGE, OR TRADE  PRACTICE. LICENSOR SPECIFICALLY AND EXPRESSLY DISCLAIMS  ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A  PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY  INTELLECTUAL PROPERTY RIGHTS TO THIRD PARTIES, PATENT  VALIDITY, OPERATION WITHOUT INTERRUPTION, ACHIEVEMENT OF  LICENSEE’S REQUIREMENTS OR INTENDED RESULTS, OR  COMPATIBILITY WITH ANY OTHER GOODS, SERVICES,  TECHNOLOGIES, OR MATERIALS EXCEPT AS EXPRESSLY SET  FORTH IN THE DOCUMENTATION. FURTHERMORE, AND WITHOUT  LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF  ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION IS  OR WILL BE SECURE, ACCURATE, COMPLETE, OR FREE OF  HARMFUL CODE OR ERROR. ALL OPEN-SOURCE COMPONENTS  AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” WITH  ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. ANY OPEN SOURCE COMPONENTS OR THIRD-PARTY REPRESENTATION OR  WARRANTY IS STRICTLY LIMITED TO LICENSEE AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE  COMPONENTS AND THIRD-PARTY MATERIALS AND UNRELATED TO  LICENSOR. 

19. INDEMNIFICATION 

a. Licensor Indemnification. Licensor will indemnify, defend, and hold  harmless Licensee, its officers, directors, employees, agents, affiliates, and  other representatives from and against any and all losses incurred by  Licensee arising from any third-party action, suit, or claim that alleges the 

Licensed Software, or any use of the Licensed Software in accordance with  this Agreement, infringes any Intellectual Property Rights. 

b. Licensor Indemnification Exceptions. The foregoing Licensor  indemnification does not apply to the extent that such actions or losses arise  from any allegation of or relating to any 

i. patent, copyright, or trademarks issued on a patent, copyright, or  trademark application published or granted after the Effective Date; 

ii. unauthorized, unlicensed, and unpermitted modification of the  Licensed Software without Licensor’s express knowledge, written  consent, and in direct contradiction to Licensor’s Documentation  specifications; 

iii. unauthorized, unlicensed, and unpermitted use of the Licensed  Software outside the purpose, scope, or manner authorized by this  Agreement or in any manner contrary to Licensor’s instructions; 

iv. Open-Source Components, other third-party materials, or any  material outside of Licensor’s exclusive control; 

v. failure to promptly install and implement any Maintenance Release  or Licensed Software replacement in order received and made  available to Licensee by Licensor; 

vi. Licensed Software use after Licensee’s receipt of Licensor’s written  notice that such continued use may be alleged to or actually infringe  upon, misappropriate, or otherwise violate a third party’s rights; 

vii. Open-Source Components or other third-party materials; 

viii. negligence, abuse, misapplication, or misuse of the Licensed  Software by or on behalf of Licensee, its representatives, or a third  party; or 

ix. causes or conditions outside Licensor’s commercially reasonable  control, including, but not limited to, any third-party equipment error  or Licensee’s own system bugs, defects, or malfunctions; or 

x. actions or losses for which Licensee is obligated to indemnify  Licensor pursuant to this Agreement. 

c. Licensee Indemnification. Licensee will indemnify, defend, and hold  harmless Licensor and its officers, directors, employees, agents, affiliates,  and other representatives from and against any and all losses incurred by 

Licensor due to any third-party actions, claims, or suits should such losses  relate to any allegation 

i. that any rights, including Intellectual Property Rights, is or will be  infringed, misappropriated, or otherwise violated by Licensee’s  unauthorized Licensed Software use in a manner inconsistent with the license grant in this Agreement and Documentation; 

ii. of or relating to matters that would be deemed a Licensee breach of  representation, obligation, covenant, or warranty under this  Agreement if proven true; 

iii. of or relating to negligence, abuse, misapplication, misuse, or other  culpable acts or omissions by or on behalf of Licensee or its  representatives with respect to the Licensed Software or otherwise  in connection with this Agreement; or 

iv. of or relating to the unauthorized, unlicensed, and unpermitted use  of the Licensed Software or Documentation outside the purpose,  scope, or manner authorized by this Agreement or in any manner  contrary to Licensor’s instructions. 

d. Mitigation. Should Licensor believe the Licensed Software, in whole or in  part, may be claimed by any third party to be in violation of another’s  Intellectual Property Right, or if Licensee’s use of the Licensed Software is  enjoined or threatened to be enjoined, Licensor may mitigate the situation  at its own option and expense by 

i. obtaining the right from the appropriate third party for Licensee to  continue to use the Licensed Software materially as intended in and  for the Term duration of this Agreement; 

ii. modifying or replacing the Licensed Software to the extent that it  becomes non-infringing while still providing the materially equivalent  features and functionalities of the original software, and such  modification or replacement will constitute the Licensed Software  thereunder; or 

iii. terminating this Agreement, in whole or in part, effective immediately  upon written notice to Licensee and, provided that Licensee fully  complies with its post-termination obligations, promptly prorate and  refund Licensee any prepaid amount by Licensee for any period after  the termination date. 

e. Sole Remedy. THIS SECTION CONSTITUTES LICENSEE’S SOLE  REMEDIES AND LICENSOR’S SOLE OBLIGATIONS AND LIABILITIES  FOR ANY CLAIMS OR ALLEGATIONS, WHETHER ACTUAL OR  THREATENED, THAT THIS AGREEMENT, SOFTWARE,  DOCUMENTATION, OR ANY SUBJECT MATTER HEREOF, INFRINGES,  MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL  PROPERTY RIGHTS OF ANY THIRD PARTY. 

20. LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY PROVIDED IN THIS  AGREEMENT, UNDER NO CIRCUMSTANCE, INCLUDING WHERE PARTIES  WERE ADVISED THAT LOSSES OR DAMAGES WERE POSSIBLE OR  FORESEEABLE, WILL EITHER PARTY BE LIABLE UNDER OR IN  CONNECTION WITH THIS AGREEMENT FOR ANY COST INCREASE;  BUSINESS, PRODUCTION, REVENUES, OR PROFITS LOST; VALUE  DIMINUTION; REPUTATIONAL LOSS; DAMAGED GOOD WILL; USE,  INABILITY TO USE, DELAY, INTERRUPTION, LOSS, OR RECOVERY OF ANY  LICENSED SOFTWARE, OPEN-SOURCE COMPONENTS, OR ANY THIRD PARTY MATERIALS; DATA OR SYSTEM SECURITY BREACH, CORRUPTION,  DAMAGE OR RECOVERY; REPLACEMENT COST OF GOODS, SOFTWARE,  OR SERVICES; OR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY,  ENHANCED, OR PUNITIVE DAMAGES UNDER ANY LEGAL OR EQUITABLE  THEORY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT,  TORT, NEGLIGENCE, AND STRICT LIABILITY WHICH WILL IN NO EVENT  EXCEED (IN THE AGGREGATE) THE FEES PAID BY LICENSEE TO  LICENSOR ATTRIBUTABLE TO THE SPECIFIC PRODUCTS OR SERVICES  GIVING RISE TO SUCH DAMAGES IN THE TWELVE (12) MONTHS  PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 

21. EXPORT REGULATION. Licensee acknowledges that the Licensed Software may  be subject to applicable United States export Laws, including the United States  Export Administration Act and its associated regulations. Licensee agrees to  comply with provisions of such export Laws. Compliance may include, but is not  limited to, obtaining any and all necessary export license or other governmental  approval. Licensee shall not itself or permit any third party to directly or indirectly  export, re-export, or release the Licensed Software, or use the Licensed Software,  in any country prohibited or restricted under United States export Laws. 

22. FORCE MAJEURE. Neither Party will be liable to the other by reason of failure or  delay in the performance of this Agreement if the failure arises out of any  circumstance beyond such Party’s reasonable control, including acts of God, flood, fire, natural disaster, war, terrorism, invasion, riot, civil unrest, embargos, national  or regional emergency, strikes, labor disruptions, Law changes, or power or  telecommunication interruptions or shortages. The Party failing or delaying in  performance of this Agreement due to circumstances beyond their control must  give prompt written notice to the other Party stating the estimated length of time  the occurrence is expected to continue. Either Party may terminate this Agreement  if such uncontrollable circumstance continues for longer than 30 days. 

23. GENERAL PROVISIONS 

a. Relationship of the Parties. Nothing contained in this Agreement shall be  construed as creating any agency, partnership, or any other form of joint  enterprise, employment, or fiduciary relationship between the Parties.  Neither Party shall have the authority to bind the other in any manner. 

b. Notices. Notices will be deemed effectively given when received if delivered  by hand; when received if sent by a nationally recognized courier with  required signature upon receipt; when sent if delivered by email with  transmission confirmation and sent during receiving party’s normal business  hours; and on the next business day if delivered by email with transmission  confirmation and sent after normal business hours.  

Any payment, notice, request, consent, claim demand, waiver, or other  communication under this Agreement must be in writing and addressed to  the Licensor follows: 

Kloudstage, LLC 

P O Box 2783, Cypress, TX 77410

Email: account@kloustage.com 

c. Publicity. Each Party agrees to seek express permission and written  consent before using the other Party’s trademarks, service marks, trade  names, logo, domain names, or other indicia of source, association, or  sponsorship for any purpose but specifically relating to publicity, marketing,  or commercial materials. 

d. Governing Law. This Agreement is governed by and construed in  accordance with the laws of the state of Texas without giving effect to any  choice or conflict of law provisions or rules that would permit the application  of the laws of any other jurisdiction.

e. Arbitration. Unless all Parties agree otherwise, Licensor and Licensee  agree that any dispute, claim, or controversy arising out of or relating to this  Agreement will be resolved through mandatory binding arbitration  administered by the American Arbitration Association (AAA) in accordance  with its Commercial Arbitration Rules, and the judgment of its arbitrator(s)  may be entered by any court of competent jurisdiction. Licensor and  Licensee further agree that the U.S. Federal Arbitration Act governs the  interpretation and enforcement of this provision. EACH PARTY HEREBY  IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY LAW, ALL  RIGHTS TO TRIAL BY JURY AND ALL RIGHTS TO BRING OR  PARTICIPATE IN A CLASS ACTION OR MULTI-PARTY ACTION IN ANY  ACTION, PROCEEDING, OR COUNTER-CLAIM ARISING OUT OF OR  RELATING TO THIS AGREEMENT. ALL CLAIMS AND DISPUTES  ARISING OUT OF THIS AGREEMENT MUST BE ARBITRATED OR  LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS.  ANY DISPUTE, CLAIM, OR CAUSE OF ACTION ARISING OUT OF OR  RELATING TO THIS AGREEMENT MUST BE COMMENCED WITHIN  ONE YEAR AFTER THE CAUSE ACCRUES; OTHERWISE, SUCH  CAUSE OF ACTION WILL BE PERMANENTLY BARRED. This provision  will survive the termination of this Agreement. 

f. Headings. The section and subsection headings or captions in this  Agreement are for reference only and do not affect the meaning or  interpretation of this Agreement. 

g. Further Assurances. The Parties will cooperate with each other, execute  and deliver such documents or instruments, and take all further actions as  may be reasonably requested by the Parties from time to time in order to  carry out, evidence, or confirm their rights or obligations or as may be  reasonably necessary or helpful to give full effect to this Agreement. 

h. Amendment and Modifications. This Agreement may be supplemented,  amended, or modified only by mutual and written agreement of all Parties.  No amendment, modification, rescission, or termination is effective unless  it is in writing and executed by all Parties or their authorized representatives. 

i. Waiver. No Party to this Agreement is deemed to have waived any of their  rights, powers, remedies, or privileges under this Agreement unless such  waiver is expressly set forth in writing and signed by the waiving Party.  Except as otherwise set forth in this Agreement, the failure to exercise or  enforce any rights, powers, remedies, or privileges under this Agreement  will in no way be construed as a present or future waiver of such rights,  powers, remedies, or privileges.

j. Assignment. Except as otherwise expressly permitted in this Agreement,  Licensee may not, directly or indirectly, sell, assign, sublicense, lease, rent,  distribute, or otherwise transfer the Licensed Software or any license rights  and obligations under this Agreement, to any other person or entity without  express written consent by Licensor. 

k. No Third-Party Beneficiaries. This Agreement is made and entered into  for the sole benefit of the Parties. Nothing in this Agreement, express or  implied, is intended to or shall confer on or create to any other person or  entity any legal or equitable right, benefit, or remedy of any kind whatsoever 

l. Severability. If any provision of this Agreement or the application thereof is  held to be invalid or unenforceable for any reason and to any extent, then  that provision will be considered removed from this Agreement. However,  the remaining provisions will continue to be valid and enforceable according  to the intentions of all Parties and to the maximum extent permitted by Law.  If it is held that any provision of this Agreement is invalid or unenforceable,  but that by limiting such provision it would become valid and enforceable,  then such provision will be deemed to be written, construed, and enforced  as so limited. 

m. Entire Agreement. This Agreement, together with any other documents  incorporated herein by reference, constitutes the sole, entire, and final  agreement of the Parties with respect to the subject of this Software License  Agreement. This Agreement supersedes all prior and contemporaneous  understandings, representations, agreements, and warranties, whether  written, oral, or implied. Should any inconsistency occur between  statements made in the body of this Agreement, any related exhibits,  schedules, attachments, and appendices, and any other documents  incorporated herein by reference, the following order of precedence  governs: (i) this Agreement, excluding any exhibits, schedules,  attachments, appendices, or any other documents incorporated herein by  reference; (ii) this Agreement’s exhibits, schedules, attachments, and  appendices, if any; and (iii) any other documents incorporated in this  Agreement by reference.

 
Scroll to Top